Output-based pay is lawful, with a floor
Nothing in South African law stops you paying people for what they produce rather than for the hours they put in. Commission on sales, a rate per garment, a fee per delivery — all lawful. What the National Minimum Wage Act does is put a floor under the result: whatever the formula, the worker may not end up with less than the minimum wage for their ordinary hours.
if the worker is paid on a basis other than the number of hours worked, the worker may not be paid less than the national minimum wage for the ordinary hours of work.
The floor cannot be contracted out of. A clause that says commission is the only pay, or that the worker accepts a lower rate, has no effect.
The payment of a national minimum wage cannot be waived and the national minimum wage takes precedence over any contrary provision in any contract, collective agreement, sectoral determination or law, except a law amending this Act.
Two details decide how the comparison is done. First, only money for ordinary hours counts as the wage: transport, tool, food and accommodation allowances, board and lodging, and tips, bonuses and gifts are left out. Second, the comparison is against ordinary hours — overtime is paid on top under the BCEA.
Figures last reviewed 9 September 2026.
The four-hour minimum
Piece-work and on-call arrangements produce short days. The BCEA answers with one sentence: a worker who is brought in for less than four hours on a day is paid for four hours. It applies to everyone earning below the earnings threshold of R269 600,90 a year.
(1) An employee or a worker as defined in section 1 of the National Minimum Wage Act, 2018, who works for less than four hours on any day must be paid for four hours work on that day. (2) This section applies to employees or workers who earn less than the earnings threshold
Notice that the section speaks of a “worker” as well as an employee. The word comes from the National Minimum Wage Act, where it means anyone who works for another and is entitled to payment — so a piece-worker paid per unit is inside the rule even if the pay is not by the hour.
Seasonal work
Seasonal work is a fixed-term contract, and the Labour Relations Act names it as a justifiable reason for one.
is employed to perform seasonal work
Naming the reason is not enough on its own. For an employee below the threshold at an employer with 10 or more employees, any fixed term longer than 3 months must be offered in writing, with the reason stated; a contract that breaks the rule is deemed permanent, and in any dispute the employer must prove the reason and the agreed term.
An offer to employ an employee on a fixed term contract or to renew or extend a fixed term contract, must— (a) be in writing; and (b) state the reasons contemplated in subsection (3)(a) or (b).
Two further points. Breaks between seasons of less than a year do not reset the employee’s length of service for BCEA purposes, so notice and leave build across seasons. And repeated seasons can create a reasonable expectation of renewal — the LRA treats a failure to renew in those circumstances as a dismissal. Say in each offer whether re-engagement is expected. The fixed-term contracts guide covers both.
Commission agents: employee or contractor?
Paying by commission says nothing about whether the person is an employee. The Supreme Court of Appeal decided in Niselow that a commission-only insurance agent was an independent contractor running his own business — and the Labour Court decided in Pam Golding that a commission-only estate agent was an employee. The pay was the same in both. The difference was control, integration and dependence.
Below the threshold the presumption of employment applies: if any one of the seven factors in section 200A is present — control of hours, working only for you, being part of the organisation — the person is presumed an employee and you must prove otherwise. The employee or contractor test walks through the factors and gives a labour-law and a SARS verdict side by side.
Whichever way the status falls, put the commission terms in writing: when commission is earned, when it is paid, what happens to pipeline deals on termination, and any clawback. The written particulars must record the rate and method of calculating pay in any event, and commission disputes are decided on the document.
See also the commission and sales representative agreement explainer, and the standard employment agreement for an employed rep with a basic plus commission.
On-call and zero-hours work
South Africa has no statute that bans zero-hours contracts and none that yet guarantees hours. What applies today is a combination of three rules already on this page and one duty of disclosure:
- the four-hour minimum in section 9A, for every day a worker below the threshold is brought in;
- the national minimum wage for every ordinary hour actually worked;
- the written particulars, which must state the employee’s ordinary hours and days of work — so “as and when required” is a term you have to write down, and one an inspector will read;
- the general BCEA limits once the person is working: 45 hours a week, overtime only by agreement, rest periods.
The proposed section 9B
The Labour Law Amendment Bill, 2025, published for public comment on 26 February 2026 alongside a Labour Relations Amendment Bill, proposes a new section 9B of the BCEA for on-call, zero-hours and min-max contracts. On the Department’s summary it would require employers to set out in writing the guaranteed hours, the maximum hours, the availability periods and reasonable notice periods for calling in or cancelling shifts; a shift cancelled without proper notice would have to be paid; and workers could not be unfairly stopped from working elsewhere without a genuine operational reason.
This is not law. The bills were published for comment in February 2026, have not been introduced in Parliament, and the Department expects promulgation in 2028. Until then, on-call arrangements are governed by the four rules above and by the contract you write. The what is changing page tracks the bills’ progress, and the part-time and casual work guide covers the 24-hour rule that decides which BCEA chapters apply to a worker with very few hours.
Frequently asked questions
You can pay by commission, but you cannot pay less than the national minimum wage for the ordinary hours the person works. If the commission earned in a pay period comes to less than R30,23 an hour for those hours, you top it up. A contract that says otherwise is overridden by the National Minimum Wage Act — see output-based pay.
If the person earns below the earnings threshold, yes: section 9A of the BCEA says a worker who works for less than four hours on a day must be paid for four hours. The rule is about the day, not the roster, so it applies to a cancelled shift the person has already reported for.
Not automatically, but repeated seasons build a case. The LRA treats it as a dismissal if a fixed-term employee reasonably expected renewal and the employer did not renew. Several seasons in a row, the same people, no notice that the arrangement is ending — that is the pattern that creates a reasonable expectation. Say in each written offer whether re-engagement is expected, and keep the reason for the fixed term (seasonal work) in the document — see seasonal work.
There is no statute that bans them, and no statute that yet guarantees hours. What applies today is the four-hour minimum for workers below the threshold, the minimum wage for every hour worked, and the duty to state ordinary hours in the written particulars. The Labour Law Amendment Bill, published for comment in February 2026, would add a new section 9B to the BCEA with written guaranteed hours and notice for cancelled shifts. It is not law, and the Department expects promulgation in 2028 — see on-call work.